CLIENT ALERT - Caution: Language in Your FMLA Forms May Violate GINA
February 28, 2012

Last week the U.S. Department of Labor released an updated version of its “Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act)” form (Form WH-380-E, located at http://www.dol.gov/whd/forms/WH-380-E.pdf). This form is to replace the previous version of the form, which will expire on February 29, 2012.

However, the new version of the form still requests information about the diagnosis of the condition that forms the basis of the employee’s request for FMLA leave. This requirement violates Genetic Information Nondiscrimination Act (“GINA”), which strictly limits the disclosure and use of genetic information.

RECOMMENDED ACTION PLAN

Because the new version of the Form WH-380-E still poses problems, we recommend that you do two things before using the new version of the FMLA forms.

1. Redact the language in Section III of the form that requests information regarding the diagnosis of the condition that forms the basis of the employee’s request for leave.

2. Take advantage of GINA’s “Safe Harbor” language. GINA provides the following “safe harbor” language which, if included with a request for medical information, will protect the covered entity by deeming inadvertent any subsequent disclosure of genetic information in response to such request:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

See 29 C.F.R. § 1635.8(b)(1)(i)(B) (regarding exceptions to the prohibition against the acquisition of genetic information).

If you have any question about whether an FMLA form that you are using may violate GINA, you should consult your employment attorney immediately. And, to be safe, always send the forms with a cover letter that includes the safe harbor language set forth above.